Court Will Examine The Constitutionality Of RIAA Fines
from the a-big-loss-for-the-RIAA dept
When the RIAA sues people for unauthorized uploading of songs, they usually put a price between $750-per-song to $30,000-per-song in losses. Many have argued that this seems rather excessive -- especially considering how much the songs are actually sold for. A year and a half ago, there was a scholarly paper that examined whether the RIAA's excessive loss claims were unconstitutionally excessive. With that in mind, it wasn't that surprising earlier this year to see one defendant in an RIAA suit question the constitutionality of the $750 number that was trotted out in her case. At the time, we stated that the reasoning used to back this up seemed much weaker than the reasoning in the law review article, but as lawyer Ray Beckerman (who is involved in the case) explained, the filing was limited in length and only needed to serve a specific purpose. It also looks like they were later able to submit either the law review article we mentioned, or other supporting documents. No matter what happened, the judge has now ruled that it is a perfectly legitimate question, and will be included as part of the case. The judge tossed out all of the RIAA's objections, noting that the defendant actually backed up their claim with case law and law review articles. The RIAA, on the other hand, could offer no similar case law to explain why the constitutionality of the fines couldn't be questioned. Of course, who knows how the case will turn out, but should the RIAA lose, it would be pretty damaging for them. They use the threat of the $750/song (or higher) fines as a way to bully people into just settling, rather than fighting -- even if they know they're innocent.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Preventitive
If the "fine" for stealing a $10 CD was related to the actually cost, or just $10, then more people would try to steal them, since, at the worst, you'd only have to pay what you'd have paid anyway should you be caught in the act.
And at best, you get away with a free CD.
The idea that the punishment is always greater than the cost of obeying the law is supposed to act as a deterent.
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Re: Preventitive
However, let's say you were pulled over near a wadded up TPS Coversheet and the police decided that you threw it away because you're the closest person near it, and then they take a good look at the area and see a few scraps of chewing gum wrapper and a lottery ticket. THEN they look in your car, and see a bunch of Burger King cups, and decide that chances are you were about to throw that away, so they'll fine you for that too.
Now pretend that it's not the cops, but it's the guy next door, who is rich and has a few dozen lawyers and all the money needed to keep those lawyers on your case until well into the next century.
Then Mr. Guy Next Door says that he'll settle for a few grand. Most of us Joe's will be so afraid at being fined $720,000 that we'll suck it up and settle.
It's bullying people who may or may not have commited a crime into settling-- because they've seen enough Law and Order to know that expensive lawyers do to the truth what little bald children in The Matrix do to spoons (or lack thereof) and don't want to take that chance.
It's just silly, and I'm not exactly holding my breath for it to stop. Eventually we'll get a judge that wanted to be a computer programmer back in college, and knows his ass from a IP address.
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Re: Re: Preventitive
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Re: Preventitive
In the example of stealing a CD from a store, you may be fined $100, $1000, do jail time, be put on probation or whatever the law allows by the criminal court, but the store will not see that money; they have to take you to civil court and prove the damages in order to collect anything.
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Re: Preventitive
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Re: Re: Preventitive
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Re: Re: Re: Preventitive
When the CD is cut and sells for 15.00 or so, the majority of the money from the store goes back to the record company (there is a very small profit margin on new CD's). This is about 13 dollars. Of that, 10 goes directly into the record company and the pockets of its executives. about 2 goes into the pockets of the A&R and legal staff that directly work with the band, and 50 cents or so goes into directly related expenses. 50 cents per CD or even much less actually goes to the band. From this 50 cents the band must pay for their living expenses, much of the arrangements for their tours, their agent (who gets a large cut) and of course, the studio time that recorded the CD.
For a band to make even a little profit from a CD, the album has to get very popular, sometimes making Gold or even platinum before a single dime is seen.
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Re: Re: Re: Preventitive
When the CD is cut and sells for 15.00 or so, the majority of the money from the store goes back to the record company (there is a very small profit margin on new CD's). This is about 13 dollars. Of that, 10 goes directly into the record company and the pockets of its executives. about 2 goes into the pockets of the A&R and legal staff that directly work with the band, and 50 cents or so goes into directly related expenses. 50 cents per CD or even much less actually goes to the band. From this 50 cents the band must pay for their living expenses, much of the arrangements for their tours, their agent (who gets a large cut) and of course, the studio time that recorded the CD.
For a band to make even a little profit from a CD, the album has to get very popular, sometimes making Gold or even platinum before a single dime is seen.
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Re: Preventitive
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However...
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Stealing != Copyright Infringement
In these cases of copyright infringement, the RIAA & MPAA are only allowed financial damages that they is supposed to prove.
If you are found guilty of pirating music/movies you do not go to jail and you do not have a criminal record, you just pay the fines.
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Legal authorities
If you're aware of any legal authorities that we left out of our memornadum of law or reply memorandum, links to which are listed near the bottom in our November 9th post, please let us know so that we may include them next time we brief this issue.
Thank you.
Keep up the good work.
Sincerely yours,
Ray
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Realistically speaking...
In that instance the agency will have clear cut proof of losses (in building supplies and emplyoee worktime) to show the civil court that I owe them x amount of money. The RIAA doesn't seem to be able to prove (at least not to the general public) that they lost $750 - $30,000 per song or else we wouldn't be talking about it.
$750 - $30,000. Thats just ridiculous. These jerks really think that one song is worth somewhere between a month's rent and a brand new SUV?
Math time: $750 - $30,00 per song at 15 songs per album is $11,250 - $450,000. So that means that one album can be worth somewhere between a new compact car to more than the president's annual salary according to these guys.
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Re: Realistically speaking...
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Re:
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Re:
Also, if you take a 2 headed headphone jack, put one end in your speaker and one end in your mic, you can use a program to record music that's being played on Napster, without ever having to buy it.
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Civil Suits
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# 10
Personally I'm of the opinion that the RIAA should have to prove damages, showing exactly how many people received how much of the file from that individual, and damages just for downloading in a CIVIL context, should be limited, merely to the price of the file.
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retroactive
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Quite honestly, this could be the SINGLE BIGGEST break in all this crap. The RIAA will have to perform real investigative work, which they cannot do, and this could seal the coffin shut.
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Re: post 14
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Re: Re: post 14
Absolutely false.
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The fines need to be re-evaluated and split to differentiate between a mass distributor of pirated material and Joe Schmoe who may have been sharing MP3s on the internet.
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I realize that the RIAA has some legitimacy in their cases here, now they take them way too far and do some pretty horrible things but perhaps there should be copyright fine policies such as these. Get caught downloading X amount of songs, pay 6 times the value of the media. Granted you have to have a strict statute of limitations so the RIAA cannot sit and watch an IP address for 3 months, as that is entrapment.
Until this can be settled legally, we need a way to make sure these cases are being carried about ethically. Yes they have a right to complain, but no they do not have a right to bully and force innocent people into paying for dead relatives supposed sins.
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The $750 is from Copyright Law
Look at Title 17 Section 504 (c) (1)
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504----000-.html
(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
That's why the RIAA asks for $750 to $30K.
-Gene
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Re: The $750 is from Copyright Law
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Re: The $750 is from Copyright Law
Yes, though the point is that the amount in Title 17 may be unconstitutional... which is addressed in the law review paper.
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Re: Re: The $750 is from Copyright Law
The problem with the law review article is that it is confusing issues. It is making a claim that copyright statutory damages are punitive. In fact, there is another section lower that talks about punitive damages
This comment thread goes to prove why Congress spoke on this issue. Statutory damages are there because proving the actual damages (unlike proving the $4000 damages in BMW) is non trivial.
The law review's logic may be applicable in a case like MP3.com's, but in the average file sharer's case, $750 multiplied by the number of files being shared illegally isn't outrageous.
In BMW, the punitive damages on the $4K of actual damages were initially $4M, reduced to $2M by the State Supreme Court, and then affirmed by the US Supreme Court.
The law review is playing a bit loose with the comparisons there. It is awfully convenient for the writer to assume that the RIAA knows that the actual damages are $1. The writer blithely skips over the simple question of the plaintiffs not having knowledge of how many times the shared file in question has been downloaded. It certainly could be more than 750 times for many files and its not like the file sharers or the file sharing software writers want to keep an incriminating log. If they didn't mind having a log, they could just run a webserver.
-Gene
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Buy Music but RICO
That being said, I wish four people would group their counter action against RIAA together and file a Federal Criminal RICO (racketeering) charge against the RIAA and personally name each attorney in the suit.
Maybe the Dems being back in power may change the RIAA minds a little bit.
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You have it easy in the US...
It seems that copyright violations can be considered a criminal offence in Singapore.
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So at least if they sue anyone using Azureus it's trivial to find out how much things were uploaded, not sure if there are similar features in other filesharing programs.
By the way I almost never download music as I didn't even listen to any before a friend gave me some mp3's (that piracy obviously cost the industry a lot!!!) of a band that he liked, after which I bought 2 of their albums (after having allready downloaded the songs in them). In this case filesharing has made the industry some money without the cost of advertising to reach me. (I have never heard of the band anywhere by accident, I have only found anything about it when I specifically searched for it). I have also given this music to friends, some of whome have bought several more of the band's albums, again without anyone having to pay advertising fees.
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RE: Comment 31
most artists that people are even intrested in downloading illegally have huge houses, cars, bank accounts, and come out of nothing you tell me how Bono or Sting have so much freaking money
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Encryption
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You have all overlooked something.
She is proving that the RIAA is a cartel, thus violating numerous FEDERAL anti-trust laws, misuse of copyrights by combining cases together, and settling them together.
She is also trying to link RIAA and a group called Settlement Support Center LLC to a defrauding scheme; "by conducting ex parte “John Doe” lawsuits which they have no intention of pursuing, but in which they interact with Judges, Magistrates, and other officials on a daily basis, without notice or opportunity to be heard being offered to defendants; by bringing the “John Doe” lawsuits in jurisdictions far removed from the domiciles of the “John Does” so that they have no meaningful opportunity to be heard or to retain counsel of their own choosing; and by other unconscionable conduct."
She is also trying to prove that $750 PER SONG is unconstitutional, and that the industry sells recordings to online retailers for 70 cents per song, that is 1,071 times the actual damages suffered. You telling me that the total is fair, especially since Lindor produced affidavits stating that the industry's number came from stock reports that is carbon-copy generated in every case they try.
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how can they even get away with 1/2 of what they a
I'm also curious as to how far they go into invading your privacy. Does it break any laws - how are they getting access to your hard drive or are they just making accusations and taking it to court – I always though there needed to be “Just Cause” for something like this to happen ? Just because something is marked Mysong.mp3 by the Rich Fabulous Bastards doesn't mean that that’s actually what is in a file. I have yet to see how they are making their claims or even getting the right to invade your privacy to search for incriminating evidence.
The whole thing just makes me sick and tired of the greedy bastards that don’t support the arts but rather support the music industries puppets. Most commercial music is nothing more than a poor attempt to make money on something that has absolutely no artistic value what so ever
Meanwhile at archive.org many a new musician gets my support. If I like something I will defiantly support the artist, buy, go see them perform and purchase their stuff.
If it quacks like a duck and hops like a frog, what the hell is it
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Re: how can they even get away with 1/2 of what th
You put music on a media stream. Now I want to listen to the stream. I can do that under fair use. How the RIAA will get you is that you send a copy of the file to my PC.
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international
also I don't think that the recording industry of AMERICA should have any right to enforce the copyright on anything but American material. if other countries want their own bogus company's working off record companies losses they can start their own. simple
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